| NEW YORK - June 25 - No one should be tried before the U.S. military commissions authorized by President Bush unless their rules are significantly changed, Human Rights Watch said today. In a new briefing paper, Human Rights Watch said use of the commissions under current military orders and instructions will fall far short of international due process standards.
Military commission trials of terrorist suspects under the existing rules will violate the basic rights of the accused, produce verdicts of questionable legitimacy, and send a message to the world that justice can be jettisoned in the fight against terrorism, Human Rights Watch said.
"The commissions are a discredit to American traditions of justice," said Jamie Fellner, director of Human Rights Watch's U.S. Program. "The Department of Defense should go back to the drawing board."
The Department of Defense has incorporated certain due process safeguards to the proposed commission proceedings, including making the trials public, requiring proof beyond reasonable doubt for conviction, presentation of evidence and cross-examination of witnesses. But these provisions provide a patina of due process to proceedings that otherwise remain seriously flawed.
Among the problems with the current rules:
1) Lack of Independent Judicial Oversight. The rules limit
appellate review of the commissions to a specially created
military panel appointed by the Secretary of Defense. President
Bush has final review of commission convictions and sentences.
The executive branch is thus prosecutor, judge and jury, and,
potentially, executioner. There is no independent judicial review
of verdicts, no matter how erroneous, arbitrary, or legally
unsound.
2) Violation of Rights of POWs. The lack of independent appeal
is a particularly grave fault if the commissions are used for
people who should have been considered prisoners of war, such as
the Taliban detainees at Guant namo. Prisoners of war (POWs) are
entitled to at least the same procedures as the detaining power
would give its own troops accused of comparable crimes. In the
United States, that means a court-martial, with appeal to a
civilian court. The failure to follow this procedure for people
who should be POWs would be a war crime.
3) Restrictions on Right to Counsel. Commission rules require defendants to be represented by military defense counsel.
Defendants may put civilian counsel on their defense team but a
military lawyer must remain on the team as well.
4) Limitations on Effective Defense. The commission rules
place severe limitations on the ability of defense lawyers to
communicate confidentially with their clients, to travel and to
conduct the investigations and research necessary for their case.
For example, attorney-client conversations may be monitored by
the government; attorneys may not talk about any aspect of the
case with prospective witnesses; and all research must be done at
the site of the commissions (presumably Guant namo Bay). In
addition, civilian counsel, even if they have the requisite
security clearance, may not be given access to all the materials
presented to the commissions.
5) Censorship of Defense Counsel. The rules impose a gag order
on defense counsel, preventing them from speaking with the press
or the public unless they receive prior approval from military
officials. Some limitations on defense counsel's ability to
comment publicly continue even after the trials have ended.
6) Military Trial of Civilians. The military commissions will
be permitted to try persons who were never combatants and whose
connection to armed conflict may be tenuous at best. For example,
a non-U.S. citizen living in the United States who has
financially contributed to al-Qaeda could be prosecuted before
the commission for "aiding and abetting" the enemy. With U.S.
courts fully functioning, there is no justification for
subjecting civilians to military trial and violating their right
to a hearing by an independent and impartial tribunal.
7) Second-Class Justice for Non-Citizens. Under the
President's Military Order, U.S. citizens may not be tried before
the commissions, regardless of whether they were enemy combatants
who committed war crimes. This exclusion presumably reflects a
political judgment that the U.S. public would not accept the
truncated justice of military proceedings for U.S. citizens.
International human rights law, as well as U.S. constitutional
law, does not permit the United States to discriminate between
citizens and non-citizens with regard to their fair trial rights.
Click here to read the briefing paper.
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